Court File and Parties

Ontario Court of Justice

Date: 2020-03-30

Court File No.: Toronto DFO-18-16040

Between:

Drew James Stirling Applicant

— AND —

Natalia Marta Marciniak Respondent

Costs Endorsement

(In Chambers)

Counsel:

• Meghan Lawson, counsel for the applicant
• Alix Nenniger, counsel for the respondent

O'CONNELL J.:

Introduction

[1] Both parties have exchanged written costs submissions arising from the motion and cross-motion argued before me on October 25, 2019.

[2] The court released its ruling on November 15, 2019. The parties delivered written costs submissions, including bills of costs and offers to settle at the end of January 2020.

[3] The mother is seeking her full recovery of costs in the amount of $13,199.19. In the alternative, she is seeking costs on a partial recovery basis in the amount of $7,500.00, inclusive of HST and disbursements.

[4] The father is seeking costs of $2,500.00, inclusive of HST and disbursements, to be payable within 90 days.

Brief Background

[5] The parties were involved in a relationship from approximately January of 2016 to August of 2018. They have two children, James, born […], 2017, and Oliver, the child who was the subject of the contested motions heard by the court. Oliver was born on […], 2019, after the parties' separation.

[6] The parties separated after the mother was charged with assaulting the father. The mother was pregnant at the time. Both parties have made numerous and serious allegations of domestic violence against each other. The mother's criminal charges were withdrawn after she entered into a peace bond.

[7] There continues to be a considerable amount of conflict between the parents. Based on the volumes of affidavit material filed and the allegations raised by each parent about the other, this is appropriately described as a "high conflict" case.

[8] The father commenced this application on December 5, 2018. On April 12, 2019, the parties reached a temporary parenting arrangement regarding their older child James, resulting in James residing with both parents in an equal time-sharing arrangement in accordance with a '4-3-3-4' schedule.

[9] However, Oliver has remained in the mother's primary care since birth. This was because he was born after the parties separated, and at the time the parties entered into the April consent order, he was an infant and he was breastfeeding. The father also initially disputed paternity of Oliver.

[10] On September 20, 2019, the parties entered into a temporary consent order regarding Oliver in which the father had regular parenting time with Oliver three days per week on Week One and four days per week on Week Two, and alternating thereafter. The father's parenting time did not include overnights.

[11] On October 11, 2019, the father brought a motion for overnight parenting time with Oliver to commence immediately, and then progressing to a 2-2-3 equal parenting time schedule by July 2020. Oliver was seven and one-half months old at the time.

[12] The mother brought a cross-motion seeking supervised access exchanges, to be supervised by a private supervised access service, and to be paid by the parties in amounts proportional to their incomes. She also sought an order for disclosure of the child protection records involving the family. This is because shortly before the father's motion, the father had reported the mother to the Children's Aid Society of Toronto regarding allegations of child abuse. The Society did not verify the allegations.

[13] The mother was opposed to the father's request for overnight parenting time to commence immediately. She proposed a more gradual schedule.

[14] The court delivered an oral ruling on November 15, 2019. For oral reasons delivered, I declined to order immediate overnight parenting time for the father. I ruled that overnight parenting time by the father was premature and not in Oliver's best interests because Oliver was still breastfeeding, still very young and very attached to the mother as his primary caregiver. Oliver was also thriving in the mother's care and he had regular and frequent contact with his father in a comprehensive parenting schedule that the parties had negotiated on September 20, 2019, approximately one month before the father's motion.

[15] I also declined to order that the access exchanges be supervised by a private service provider given the prohibitive cost to the parties at that time. The parties continued to exchange the children in public spaces.

[16] The father's motion was then adjourned to February 7, 2020, be reviewed when Oliver became twelve months old. The court also adjourned the mother's motion to the same date.

[17] During the course of argument on the motions, a voir dire was held on the admissibility of surreptitiously taped audio recordings made by the father a number of years ago, prior to this litigation, transcripts of which were attached to his affidavit. For oral reasons delivered, the transcripts and the audio recordings were deemed inadmissible and struck from the record.

The Law and Governing Principles

[18] The starting point in addressing the issue of costs is Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43. Section 131 gives the court discretion as to determination of costs. However, that discretion is structured by Rule 24 of the Family Law Rules, O. Reg. 114/99 (all references to rules in this endorsement are to the Family Law Rules). Rule 24 governs the determination of costs in family law proceedings.

[19] The sections of Rule 24 relevant to the circumstances of this case are as follows:

Successful Party Presumed Entitled to Costs

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).

Successful Party Who Has Behaved Unreasonably

(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party's own costs or ordered to pay all or part of the unsuccessful party's costs. O. Reg. 114/99, r. 24 (4).

Decision on Reasonableness

(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept. O. Reg. 114/99, r. 24 (5).

Divided Success

(6) If success in a step in a case is divided, the court may apportion costs as appropriate. O. Reg. 114/99, r. 24 (6).

Bad Faith

(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. O. Reg. 114/99, r. 24 (8).

Deciding Costs

(10) Promptly after dealing with a step in a case, the court shall, in a summary manner,

(a) determine who, if anyone, is entitled to costs in relation to that step and set the amount of any costs; or

(b) expressly reserve the decision on costs for determination at a later stage in the case. O. Reg. 298/18, s. 14.

(10.1) Revoked: O. Reg. 298/18, s. 14.

Same

(11) The failure of the court to act under subrule (10) in relation to a step in a case does not prevent the court from awarding costs in relation to the step at a later stage in the case. O. Reg. 298/18, s. 14.

Setting Costs Amounts

(12) In setting the amount of costs, the court shall consider,

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party's behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,

(iv) any legal fees, including the number of lawyers and their rates,

(v) any expert witness fees, including the number of experts and their rates,

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter. O. Reg. 298/18, s. 14.

Supporting Materials

(12.1) Any claim for costs respecting fees or expenses shall be supported by documentation satisfactory to the court. O. Reg. 298/18, s. 14.

[20] In Mattina v. Mattina, 2018 ONCA 867, the Ontario Court of Appeal expanded upon the Court's well-known decision in Serra v. Serra, 2009 ONCA 395, and stated that modern costs rules are designed to foster four fundamental purposes:

1. to partially indemnify successful litigants for the cost of litigation;

2. to encourage settlement;

3. to discourage and sanction inappropriate behaviour by litigants bearing in mind that the award should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party;

4. to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules.

[21] Costs awards are discretionary. In Beaver v. Hill, 2018 ONCA 840, the Court of Appeal held that two important principles in exercising discretion regarding costs are reasonableness and proportionality.

[22] As is clear from subrule 24(1), the Family Law Rules create a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs. See: Sims-Howarth v. Bilcliffe.

[23] When determining whether a party has been successful, the court should take into account how the order compares to any settlement offers that were made. See: Lawson v. Lawson.

[24] Subrule 18 (14) reads as follows:

Costs Consequences of Failure to Accept Offer

18(14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

1. If the offer relates to a motion, it is made at least one day before the motion date.

2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.

3. The offer does not expire and is not withdrawn before the hearing starts.

4. The offer is not accepted.

5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.

[25] The onus of proving that the offer is as or more favourable than the result is on the person making the offer. See: Neilipovitz v. Neilipovitz, [2014] O.J. No. 3842 (SCJ).

[26] The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order. See: Wilson v. Kovalev, 2016 ONSC 163.

[27] Close is not good enough to attract the costs consequences of 18 (14). The offer must be as good as or more favourable than the trial result. See: Gurley v. Gurley, 2013 ONCJ 482.

[28] The technical requirements of subrule 18 (4) must be met to attract the costs consequences in subrule 18 (14). See: Clancy v. Hansman, 2013 ONCJ 702; T.M.B.-P. v. B.P.G., 2018 ONCJ 517.

Application and Analysis

[29] Both parties, to their credit, submitted Rule 18 Offers to Settle. The court commends the parties and counsel for so doing. It is surprising how many counsel do not take the time to properly prepare Rule 18 Offers to Settle for contested motions.

[30] The mother served two offers to settle, on October 1, 2019 and October 18, 2019. The mother's offers to settle were not severable and addressed both the parenting provisions and her proposal for supervised access exchanges.

[31] On October 1, 2019, the mother offered that the father could commence overnight parenting time with Oliver on December 2, 2019, to be reviewed on January 1, 2020, "with a view to introducing additional overnights for [the father] with Oliver." However, in her first offer to settle, the father's overall parenting time was reduced.

[32] On October 11, 2019, the mother continued to offer overnight parenting time with the father commencing December 2, 2019, and the father's overall parenting time was no longer reduced, but in fact increased with the overnight time. The overnight schedule would again be reviewed on January 1, 2020, with a view to introducing additional overnights.

[33] Both of the mother's offers also contained detailed proposal for private supervised access exchanges. The mother's offers to settle were not severable.

[34] The father served one offer to settle on October 11, 2019. The father's offer to settle was severable and addressed both the parenting schedule and the mother's request for supervised access exchanges.

[35] The father proposed that his overnight parenting time commence on November 25, 2019 and that it would increase to two overnights in a two week period commencing November 25, 2019 during "phase one" and on January 6, 2020, the father's parenting time would increase to three overnights in a two week period during "phase two" and on April 27, 2020, the father's parenting time would increase to six overnights in a two week period, leading to an equal parenting commencing July 5, 2020.

[36] Although the father did not agree to a private, fee-based supervisor or a supervised access centre for exchanges, he did propose to reduce the number of access exchanges and for some exchanges to be at their older child's daycare.

[37] The father's counsel submits that because the court ultimately adjourned all of the relief sought by both parties to February 7, 2020, when Oliver turned 12 months old, that neither party was successful. However, she further submits that upon review of both parties Offers to Settle, the father was the more successful party and should be awarded costs.

[38] I disagree. Neither party was entirely successful in this case, however, the mother was more successful than the father.

[39] The main issue that took most of the time on the motions was the increase in the father's parenting time to include overnight visits. The father wanted these overnight visits to commence immediately, with a view to moving to an equal parenting schedule over three phases.

[40] A considerable amount of time and legal resources were spent on this issue. It was unclear why the father would proceed with such a motion only weeks after consenting to a temporary parenting arrangement for Oliver on September 20, 2019, which became a court order. Oliver was only seven and one-half months old at the time the father brought his motion. Oliver was still breastfeeding.

[41] The father was not successful on this issue. The court declined to order any overnight access and adjourned his request until February 4, 2020 when Oliver became twelve months old. The mother had indicated during oral submissions that it was hoped that Oliver would be weaned from breastfeeding by that time. The court held that it was more appropriate to consider overnight visits at that time.

[42] Further, the time spent on the motion was also increased by the father's decision to seek to introduce surreptitious recordings that he had made regarding conversations that he had with the mother years prior to this litigation. The court ruled that these recordings and transcripts were inadmissible and not relevant.

[43] Courts have held that such recordings between family litigants must be discouraged and that costs awards are an appropriate mechanism for so doing. See Fielding v. Fielding, 2014 ONSC 100; upheld on appeal 2015 ONCA 901.

[44] The mother's offer to settle the issue of overnight parenting time was significantly more favourable than the court's ruling. She offered to commence overnight visits on December 2, 2019. The court did not order any overnight visits, and postponed the consideration of overnight visits until February 2020.

[45] However, the mother's offers to settle were not severable and the mother was not successful on the issue of supervised access exchanges.

[46] The mother is therefore not entitled to her full recovery of costs. However, she is entitled to a portion of her costs as she was clearly the more successful party.

Conclusion and Order

[47] The dominant issue in the contested hearing was the father's request for immediate overnight parenting time. This was the most important, time consuming, and expensive issue to determine.

[48] The mother was successful on this issue. Her offer to settle on this issue was more favourable than the court's ruling.

[49] In my view, a fair, proportional and reasonable cost award to the mother for these motions is $5,000.00, inclusive of HST and disbursements.

[50] Mr. Stirling shall therefore be required to pay Ms. Marciniak's costs fixed at $5,000.00 inclusive of fees, disbursements, and taxes. These costs are payable forthwith.

[51] In the circumstances of the Covid-19 emergency, this Endorsement is deemed to be an Order of the court that is operative and enforceable without any need for a signed or entered, formal, typed order.

[52] The parties may submit formal orders for signing and entry once the court is able to do so; however, this Endorsement is an effective and binding Order from the time of release.

[53] I thank counsel for their helpful submissions.

Signed: Justice Sheilagh O'Connell

Costs Endorsement to be emailed to the parties at the following addresses:

1. The Applicant through counsel at […]
2. The Respondent through counsel at […]